AU: Workplace bullying – don’t be caught out in the crackdown

from Kemp Strang

With all the activity surrounding the introduction of Modern Awards and the National Employment Standards under the Fair Work Act 2009 (Cth) (“FW Act”), employers should be mindful not to drop the ball with their other legal obligations, in particular those under occupational health and safety (“OHS”) laws. One area under OHS that needs constant attention is that of bullying in the workplace.

Costs of bullying
In recent surveys and reports it has been stated that:

Close to one third of over 2,000 people surveyed in 2008 said they had been bullied at work, with close to half having witnessed bullying or discrimination occurring against a co-worker.

Bullying costs Australian employers between $6 billion and $13 billion per year, including due to:

- Lost time due to absenteeism or injuries;

- Lost productivity;

- Reduced morale;

- High turnovers;

- Workers’ compensation claims; and

- Litigation costs.

Bullying and OHS
In NSW, which like Queensland has stricter OHS obligations than the other States and Territories, employers have a basic duty to “ensure the health, safety and welfare at work” of its employees. This includes against both physical and psychological illnesses and injuries.

In addition, employees themselves have duties under OHS laws to take reasonable care for the health and safety of people at their workplace. This duty, and the importance of being pro-active in relation to bullying, was recently highlighted by a case where a young female employee committed suicide following repeated bullying and harassment by co-workers at a Victorian café. The three co-workers were fined $45,000, $30,000 and $10,000 with the owner and the owner’s company fined $250,000. The fines would have been doubled has the accused not plead guilty.

Fines for breaching NSW OHS laws (including in relation to workplace bullying) can range up to $1,650,000 for corporations and $165,000 and/or 5 years imprisonment for individuals for the most serious offence of recklessly causing death at a workplace.

So why is preventing bullying important?
Workplace bullying is repeated, less favourable treatment or unreasonable behaviour that has the potential to cause harm to the health and safety of employees. Such conduct may include:

- Physical – for example, hitting or inappropriate touching.

- Verbal – for example, insults or taunts.

- Psychological – for example, public criticism or negative body language.

- Social – for example, shutting people out of conversations or social events.

Failing to prevent or otherwise deal with situations of bullying may lead to breaches of OHS duties, fines and increased premiums following a higher number of workers’ compensation claims. Combined with the fact that damages for psychological injury caused by bullying have been awarded by the Courts and safety regulators are currently conducting an intense crackdown on bullying, now is the time to ensure you are doing everything possible to prevent bullying.

Bullying and Adverse Action
In our December 2009 article titled Adverse Action – the sleeping giant in the new era of Fair Work we set out the provisions dealing with adverse action protection for employees under the FW Act. Bullying situations may trigger the adverse action provisions (and its associated remedies) in two main ways:

- A person who has been bullied has a workplace right in that they are entitled to the benefit of protection under OHS laws and can also complain to management, HR etc in relation to bullying in the workplace. Failing to do anything to follow up a complaint or otherwise victimising/discriminating against a complainant would constitute adverse action and expose employers to liability.

- A bully also has workplace rights in that they are entitled to the benefit of their contract of employment and associated termination/disciplinary procedures. Failing to follow due process and investigation procedures but still disciplining the employee or terminating their employment would constitute adverse action under the FW Act.

What can and should employers do?
As bullying can be direct or subtle, it is not always easy to prevent it from occurring. However, there are a few simple things that employers can and should do to reduce the risks of it occurring in the workplace while simultaneously reducing the chance of adverse action claims and breaches of OHS laws. These include:

- Ensuring that you have detailed bullying, discrimination and harassment policies in place, including steps to be taken in suspected cases of bullying.

- Avoid mere ‘paper’ systems – ensure you follow and enforce your policies.

- Ensure employees and management are trained in identifying bullying behaviour and the steps to handle it.

- Know the difference between reasonable management action and bullying.

- Don’t turn a blind eye – failing to act where bullying is suspected, even without a formal complaint, can still constitute breaches of OHS laws.

For further information or assistance with any of the above action steps please contact Ben Urry.